704 Phil. 10
BERSAMIN, J.:
x x x x
We agree with petitioner that its members perform a function totally different from the rank-and-file employees. The word capataz is defined in Webster’s Third International Dictionary, 1986 as “a boss”, “foreman” and “an overseer”. The employer did not dispute during the hearing that the capatazes indeed take charge of the implementation of the job orders by supervising and instructing the miners, mackers and other rank-and-file workers under them, assess and evaluate their performance, make regular reports and recommends (sic) new systems and procedure of work, as well as guidelines for the discipline of employees. As testified to by petitioner’s president, the capatazes are neither rank-and-file nor supervisory and, more or less, fall in the middle of their rank. In this respect, we can see that indeed the capatazes differ from the rank-and-file and can by themselves constitute a separate bargaining unit.
While it is claimed by the employer that historically, the capatazes have been considered among the rank-and-file and that it is only now that they seek a separate bargaining unit such history of affiliation with the rank-and-file association of LEU cannot totally prevent the capatazes from disaffiliating and organizing themselves separately. The constitutional right of every worker to self-organization essentially gives him the freedom to join or not to join an organization of his own choosing.
The fact that petitioner seeks to represent a separate bargaining unit from the rank-and-file employees represented by the LEU renders the contract bar rule inapplicable. While the collective bargaining agreement existing between the LEU and the employer covering the latter’s rank-and-file employee covers likewise the capatazes, it was testified to and undisputed by the employer that the capatazes did not anymore participate in the renegotiation and ratification of the new CBA upon expiration of their old one on 16 November 1998. Their nonparticipation was apparently due to their formation of the new bargaining unit. Thus, while the instant petition was filed on 27 May 1998, prior to the freedom period, in the interest of justice and in consonance with the constitutional right of workers to self-organization, the petition can be deemed to have been filed at the time the 60-day freedom period set in. After all, the petition was still pending and unresolved during this period.
WHEREFORE, the petition is hereby granted and a certification election among the capataz employees of the Lepanto Consolidated Mining Company is hereby ordered conducted, subject to the usual pre-election and inclusion/exclusion proceedings, with the following choices:The employer is directed to submit to this office within ten (10) days from receipt hereof a copy of the certified list of its capataz employees and the payroll covering the said bargaining unit for the last three (3) months prior to the issuance hereof.
- Lepanto Capataz Union; and
- No Union.
SO DECIDED. [6]
x x x x
The bargaining unit sought to be represented by the appellee are the capataz employees of the appellant. There is no other labor organization of capatazes within the employer unit except herein appellant. Thus, appellant is an unorganized establishment in so far as the bargaining unit of capatazes is concerned. In accordance with the last paragraph of Section 11, Rule XI, Department Order No. 9 which provides that “in a petition filed by a legitimate labor organization involving an unorganized establishment, the Med-Arbiter shall, pursuant to Article 257 of the Code, automatically order the conduct of certification election after determining that the petition has complied with all requirements under Section 1, 2 and 4 of the same rules and that none of the grounds for dismissal thereof exists”, the order for the conduct of a certification election is proper.
Finally, as to the issue of whether the Med-Arbiter exhibited ignorance of the law when she directed the conduct of a certification election when appellee prays for the conduct of a consent election, let it be stressed that appellee seeks to be recognized as the sole and exclusive bargaining representative of all capataz employees of appellant. There are two modes by which this can be achieved, one is by voluntary recognition and two, by consent or certification election. Voluntary recognition under Rule X, Department Order No. 9 is a mode whereby the employer voluntarily recognizes the union as the bargaining representative of all the members in the bargaining unit sought to be represented. Consent and certification election under Rules XI and XII of Department Order No. 9 is a mode whereby the members of the bargaining unit decide whether they want a bargaining representative and if so, who they want it to be. The difference between a consent election and a certification election is that the conduct of a consent election is agreed upon by the parties to the petition while the conduct of a certification election is ordered by the Med-Arbiter. In this case, the appellant withdrew its consent and opposed the conduct of the election. Therefore, the petition necessarily becomes one of a petition for certification election and the Med-Arbiter was correct in granting the same.[9]
x x x x
Appellant accused Med-Arbiter Ulep of grave abuse of discretion amounting to lack of jurisdiction based on her failure to resolve appellant’s motion to modify order to submit position papers and on rendering judgment on the basis only of appellee’s position paper.
We deny.
Section 5, Rule XXV of Department Order No. 9, otherwise known as the New Rules Implementing Book V of the Labor Code, states that “in all proceedings at all levels, incidental motions shall not be given due course, but shall remain as part of the records for whatever they may be worth when the case is decided on the merits”.
Further, the motion to modify order to submit position papers filed by appellant is without merit. Appellant claimed that the issues over which Med-Arbiter Ulep directed the submission of position papers were: (1) failure to challenge properly; (2) failure (especially of LEU) to participate actively in the proceedings before the decision calling for the conduct of certification election; and (3) validity of earlier arguments. According to appellant, the first issue was for appellee LCU to reply to in its position paper, the second issue was for the LEU and the third issue for appellant company to explain in their respective position paper. It was the position of appellant company that unless the parties filed their position paper on each of their respective issues, the other parties cannot discuss the issues they did not raise in the same position papers and have to await receipt of the others’ position paper for their appropriate reply.
Section 9, Rule XI of Department Order No. 9, which is applied with equal force in the disposition of protests on the conduct of election, states that “the Med-Arbiter shall in the same hearing direct all concerned parties, including the employer, to simultaneously submit their respective position papers within a non-extendible period of ten days”. The issues as recorded in the minutes of 28 February 2001 hearing before the Med-Arbiter are clear. The parties, including appellant company were required to submit their respective positions on whether there was proper challenge of the voters, whether LEU failed to participate in the proceedings, if so, whether it should be allowed to participate at this belated stage and whether the arguments raised during the pre-election conferences and in the protests are valid. The parties, including appellant company were apprised of these issues and they agreed thereto. The minutes of the hearing even contained the statement that “no order will issue” and that “the parties are informed accordingly”. If there is any matter that had to be clarified, appellant should have clarified the same during the said hearing and refused to file its position paper simultaneously with LCU and LEU. It appears that appellant did not do so and acquiesced to the filing of its position paper within fifteen days from the date of said hearing.
Neither is there merit in appellant’s contention that the Med-Arbiter resolved the protest based solely on appellee LCU’s position paper. Not only did the Med-Arbiter discuss the demerits of appellant’s motion to modify order to submit position papers but likewise the demerits of its protest. We do not, however, agree with the Med-Arbiter that the protest should be dismissed due to appellant’s failure to challenge the individual voters during the election. We take note of the minutes of the pre-election conference on 10 November 2000, thus:“It was also agreed upon (by union and management’s legal officer) that all those listed will be allowed to vote during the certification election subject to challenge by management on ground that none of them belongs to the bargaining unit”. (Underscoring supplied)
It is therefore, not correct to say that there was no proper challenge made by appellant company. The challenge was already manifested during the pre-election conference, specifying that all listed voters were being challenged because they do not belong to the bargaining unit of capatazes. Likewise, the formal protest filed by appellant company on the day of the election showed its protest to the conduct of the election on the grounds that (1) none of the names submitted and included (with pay bracket 8 and 9) to vote qualifies as capataz under the five-point characterization made in 02 May 2000 decision calling for the conduct of certification election; (2) the characterization made in the 02 May 2000 decision pertains to shift bosses who constitutes another union, the Lepanto Local Staff Union; and (3) the names listed in the voters’ list are members of another union, the Lepanto Employees Union. This constitutes proper challenge to the eligibility of all the voters named in the list which includes all those who cast their votes. The election officer should have not canvassed the ballots and allowed the Med-Arbiter to first determine their eligibility.
Notwithstanding the premature canvass of the votes, we note that appellant company failed to support its grounds for challenge with sufficient evidence for us to determine the validity of its claim. No job description of the challenged voters was submitted by appellant from which we can verify whether the said voters are indeed disqualified from the alleged five-point characterization made in the 02 May 2000 decision, either before the Med-Arbiter or on appeal. Neither was the job description of the shift bosses whom appellant company claims pertain to the alleged five-point characterization submitted for our perusal. The challenge must perforce fail for lack of evidence.
As to the alleged membership of appellee LCU’s member with another union LEU, the issue has been resolved in the 02 May 200[0] decision of Med-Arbiter Lontoc which we affirmed on 12 July 2000.
WHEREFORE, the appeal is hereby DENIED for lack of merit and the decision of the Med-Arbiter dated 26 April 2001, certifying Lepanto Capataz Union as the sole and exclusive bargaining agent of all capataz workers of Lepanto Consolidated Mining Company, is AFFIRMED.
SO RESOLVED.[16]
Considering that the petitioner failed to file a prior motion for reconsideration of the Decision of the public respondent before instituting the present petition as mandated by Section 1 of Rule 65 of the 1997 Rules of Civil Procedure, as amended, the instant “Petition for Certiorari Under Rule 65 with Prayer for Temporary Restraining Order and Injunction” is hereby DISMISSED.
Well-settled is the rule that the “filing of a petition for certiorari under Rule 65 without first moving for reconsideration of the assailed resolution generally warrants the petition’s outright dismissal. As we consistently held in numerous cases, a motion for reconsideration by a concerned party is indispensable for it affords the NLRC an opportunity to rectify errors or mistakes it might have committed before resort to the courts can be had.
It is settled that certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law against acts of public respondents. Here, the plain and adequate remedy expressly provided by law was a motion for reconsideration of the impugned resolution, based on palpable or patent errors, to be made under oath and filed within ten (10) days from receipt of the questioned resolution of the NLRC, a procedure which is jurisdictional. Further, it should be stressed that without a motion for reconsideration seasonably filed within the ten-day reglementary period, the questioned order, resolution or decision of NLRC, becomes final and executory after ten (10) calendar days from receipt thereof.” (Association of Trade Unions (ATU), Rodolfo Monteclaro and Edgar Juesan vs. Hon. Commissioners Oscar N. Abella, Musib N. Buat, Leon Gonzaga, Jr., Algon Engineering Construction Corp., Alex Gonzales and Editha Yap. 323 SCRA 50).
SO ORDERED.[17]
I
THE COURT OF APPEALS ERRED IN SUMMARILY DISMISSING THE PETITION FOR CERTIORARI ON THE GROUND THAT NO PRIOR MOTION FOR RECONSIDERATION WAS FILED. THE DECISION OF THE SECRETARY BEING FINAL AND EXECUTORY, A MOTION FOR RECONSIDERATION WAS NOT AN AVAILABLE REMEDY FOR PETITIONER.II
ON THE MERITS, THE SECRETARY OF LABOR ACTED WITHOUT OR IN EXCESS OF JURISDICTION, [O]R WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUNG THE DECISION DATED SEPTEMBER 17, 2002, WHEN SHE DELIBERATELY IGNORED THE FACTS AND RULED IN FAVOR OF THE RESPONDENT UNION, DESPITE HER OWN FINDING THAT THERE HAD BEEN A PREMATURE CANVASS OF VOTES. [19]
The bargaining unit sought to be represented by the appellee are the capataz employees of the appellant. There is no other labor organization of capatazes within the employer unit except herein appellant. Thus, appellant is an unorganized establishment in so far as the bargaining unit of capatazes is concerned. In accordance with the last paragraph of Section 11, Rule XI, Department Order No. 9 which provides that “in a petition filed by a legitimate labor organization involving an unorganized establishment, the Med-Arbiter shall, pursuant to Article 257 of the Code, automatically order the conduct of certification election after determining that the petition has complied with all requirements under Section 1, 2 and 4 of the same rules and that none of the grounds for dismissal thereof exists”, the order for the conduct of a certification election is proper.[32]
x x x [T]he office of a petition for review on certiorari under Rule 45 of the Rules of Court requires that it shall raise only questions of law. The factual findings by quasi-judicial agencies, such as the Department of Labor and Employment, when supported by substantial evidence, are entitled to great respect in view of their expertise in their respective field. Judicial review of labor cases does not go far as to evaluate the sufficiency of evidence on which the labor official’s findings rest. It is not our function to assess and evaluate all over again the evidence, testimonial and documentary, adduced by the parties to an appeal, particularly where the findings of both the trial court (here, the DOLE Secretary) and the appellate court on the matter coincide, as in this case at bar. The Rule limits that function of the Court to review or revision of errors of law and not to a second analysis of the evidence. Here, petitioners would have us re-calibrate all over again the factual basis and the probative value of the pieces of evidence submitted by the Company to the DOLE, contrary to the provisions of Rule 45. Thus, absent any showing of whimsical or capricious exercise of judgment, and unless lack of any basis for the conclusions made by the appellate court may be amply demonstrated, we may not disturb such factual findings.[33]